Of all the challenges that come with being a parent, perhaps one of the hardest to think about is what will happen to your children should something happen to you and your spouse. While creating an end-of-life plan — also called an estate plan — for you and your family can seem morbid to many people, it’s an important step to take, particularly when minor children are involved. By talking to a lawyer who focuses on estate planning and getting the proper documents in place early, you can rest assured your kids will be taken care of and your assets will be distributed as you wish.
At a minimum, your estate plan may include:
- a will, which will outline what happens to your possessions upon death and name guardianship for your children;
- a trust, which holds the assets you wish to leave to your children and names a trustee to manage the assets (not necessarily the guardian);
- a healthcare directive, aka living will, which names someone who can make healthcare decisions for you if you’re unable to;
- a HIPAA waiver, which names who has rights to your healthcare information;
- guardianship nomination documents, which outline how you want your children to be cared for if you pass;
- final instructions for disposition of your body
While it’s not required to go through a lawyer to set up a will, Meaghan Donnellon Hyden, an attorney with Donnellon, Donnellon & Miller who focuses on estate planning, highly recommends using one. “There are certain signing requirements for wills in Ohio, and you also want to make sure you are capturing all your wishes and intentions in your will or estate plan,” she says. “An attorney can advise you on how to do that.”
Your Most Precious Assets
For parents, knowing that your children will be in a loving, caring home can seem like the most important decision that you will make when creating an estate plan. Many people assume that grandparents automatically assume guardianship if both parents pass and specific arrangements aren’t outlined in a will, but that isn’t always the case. A judge will grant guardianship to a person who steps forward to care for your children — whether or not it’s someone you would choose. Should more than one person come forward, this could mean time spent in court and your children in the hands of child protective services.
In order to ensure your children continue to live a happy, healthy life, take some time to talk to your spouse about your options. While money and geographical proximity to your family may be factors in helping you decide on a guardian, most importantly, it should be someone who would uphold your family values. This may be someone in your family or not.
Once you select a potential guardian, go to that person before you put it in writing.
“You should always have a conversation with the person or people you will be naming a guardian, so they can make sure they want to and are willing to serve in that capacity,” Hyden says.
If the potential guardian lives outside the state, discuss if they or your children will move, and let them know of the expectations you have for their care. If they are agreeable, let them know who they should contact — most likely your lawyer — if something should happen to you.
Your lawyer will help you think through all the details regarding guardianship in order to ensure your desires are followed as smoothly as possible. Unless official changes are made, the guardianship part of your will remains in effect until your children turn 18 and become legal adults.
Put It Into Action
Once you make the hard decisions that go into your estate plan, including guardianship of your children, executing it is fairly easy. With your lawyer, you will sign the will and other documents in front of a witness and have it notarized, Hyden says. Keep the document in a place that will be safe from flood or fire damage, such as a safe deposit box. Hyden recommends letting the executor and people named in the will know where this is, because they will need the official document in hand in order to execute your plans.
Although it may be difficult to think about, putting your guardianship wishes in writing is one of the best gifts you can give your children and loved ones, helping them to avoid potential conflict and assuring them your legacy will continue on in a way that would have made you happy.